OPINION OF THE COURT
Wallace, J.
Plaintiff Robbins was a passenger in an automobile driven by her 70-year-old father on an upstate highway. An eyewit[550]*550ness saw the car veer off the road at about' 65 miles per hour and turn over in a culvert on adjoining farmland. There was circumstantial evidence that the driver, who had driven with this plaintiff and other family members early that morning from New York City to Plattsburgh and was returning the same day, had fallen asleep at the wheel. This was conduct that the jury found to be both negligent and a proximate cause of the accident. On this appeal, defendants, who include the lessors of the vehicle, do not seriously contest liability; the main issue is the trial court’s treatment of plaintiff Robbins’ alleged failure to mitigate damages due to her religious beliefs as a Jehovah’s Witness.
The central question for us, on appellate review, is not merely the admeasurement of plaintiff’s damages under the application of traditional tort law standards, but the broader controversy involving plaintiffs beliefs and their proper effect upon her monetary award. That, in turn, obliges us to grapple with grave constitutional issues ordinarily not involved in a motor vehicle accident — even one as tragic and catastrophic1 as this one.
I.
For a hundred years it has been settled law in this State that a party who claims to have suffered damage by the tort of another is bound "to use reasonable and proper efforts to make the damage as small as practicable” (Blate v Third Ave. R. R. Co., 44 App Div 163, 167), and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon him (Hamilton v McPherson, 28 NY 72, 77).
Plaintiff Robbins suffered a severely damaged left hip, as well as a painful injury to her right knee. Her own expert testified that if these injuries were not alleviated by well-recognized and universally accepted surgical procedures, her prognosis was for a wheelchair-bound life because of the inevitability of necrotic development in the bone structure of these limbs. Moreover, all the experts agreed that the surgical intervention available to this plaintiff (52 years of age at the time of the accident) offered her the prospect of a good recovery and a near normal life. However, Robbins, a devout Jehovah’s Witness, [551]*551presented proof (chiefly from her own hospital records) that she was obliged to refuse these recommended surgeries because her church prohibits the blood transfusions they would necessarily entail.
In accordance with settled law, the New York pattern jury instruction on the subject of damage mitigation refers to the actions of "a reasonably prudent person” (PJI 2:325) and measures the duty to mitigate in accordance with that standard.2 Although the trial court acquainted the jury with the existence of that standard, it charged that in this case the standard to be applied was something very different:
"You have to accept as a given that the dictates of her religion forbid blood transfusions.
"And so you have to determine * * * whether she * * * acted reasonably as a Jehovah’s Witness in refusing surgery which would involve blood transfusions.
"Was it reasonable for her, not what you would do or your friends or family, was it reasonable for her given her beliefs, without questioning the validity or the propriety of her beliefs?” (Emphasis added.)
In abandoning the "reasonably prudent person” test in favor of a "reasonable Jehovah’s Witness” standard, over defendants’ objection, the trial court perceived the issue as involving this plaintiff’s fundamental right to the free exercise of her religion, protected by the First Amendment of the United States Constitution and article I (§ 3) of the New York State Constitution (167 Mise 2d 312). The First Amendment prohibits any law "respecting an establishment of religion, or prohibiting the free exercise thereof’. Essentially, the court held that if the jury were permitted to assess this plaintiff’s refusal to accept additional surgery without total deference to her religious beliefs, it would unlawfully restrain "the free exercise” of her Jehovah’s Witness faith and would thus be constitutionally prohibited. In effect, this plaintiff’s religious beliefs were held, as a matter of law, to relieve her of any legal obligation to mitigate damages under the same standard required of all other [552]*552persons similarly situated who do not share similar religious convictions.
Prior to this action, New York courts have rarely dealt with the issue of a plaintiff whose medical care was limited by her religious beliefs. Virtually all of the handful of jurisdictions to have considered the question have adopted the test of the reasonably prudent person instead of the formulation employed here. (See, e.g., Munn v Algee, 924 F2d 568 [5th Cir], cert denied 502 US 900; Corlett v Caserta, 204 Ill App 3d 403, 413-414, 562 NE2d 257, 263; Shorter v Drury, 103 Wash 2d 645, 659, 695 P2d 116, 124, cert denied 474 US 827; see also, Nashert & Sons v McCann, 460 P2d 941 [Okla].)
In our view, the analysis of the trial court contained many flaws. The first error was in defining the fundamental issue as whether any jury verdict could be permitted to conflict with this plaintiff’s "religious belief that it may be better to suffer present pain than to be barred from entering the Kingdom of Heaven” (167 Misc 2d, supra, at 318).3 With all due deference, this is not the question that should have been presented; to put it in this manner inevitably skews the result.4
No one suggests that the State, or, for that matter, anyone else, has the right to interfere with that religious belief. But the real issue here is whether the consequences of that belief must be fully paid for here on earth by someone other than the injured believer. According to the trial court, the State has little interest in enforcing its general rule of damage mitigation simply to rescue a wrongdoer from the full consequences of his tortious conduct. This simplistic formulation has little application to the realities of this case. Here, the "wrongdoer,” who fell asleep at the wheel, paid for his "fault” with his life. The respondents in damages (defendant car leasing company and its insurance carrier) must answer for the harm under the derivative liability imposed by Vehicle and Traffic Law § 388, which expresses the State’s interest in cost allocation among
[553]*553that segment of the public that pays automobile insurance premiums.
Of course, the State does not have any interest in the question of who wins this lawsuit, or the extent to which one party prevails over the other. But the State does have a compelling interest in assuring that the proceedings before its civil tribunals are fair, and that any litigant is not improperly advantaged or disadvantaged by adherence to a particular set of religious principles. The State also has a compelling interest, by constitutional command under the Fourteenth Amendment, to extend equal protection of the law to every person haled before its courts. A derivative tortfeasor is certainly entitled to no less equal protection, in this regard, than an individual under criminal indictment.
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OPINION OF THE COURT
Wallace, J.
Plaintiff Robbins was a passenger in an automobile driven by her 70-year-old father on an upstate highway. An eyewit[550]*550ness saw the car veer off the road at about' 65 miles per hour and turn over in a culvert on adjoining farmland. There was circumstantial evidence that the driver, who had driven with this plaintiff and other family members early that morning from New York City to Plattsburgh and was returning the same day, had fallen asleep at the wheel. This was conduct that the jury found to be both negligent and a proximate cause of the accident. On this appeal, defendants, who include the lessors of the vehicle, do not seriously contest liability; the main issue is the trial court’s treatment of plaintiff Robbins’ alleged failure to mitigate damages due to her religious beliefs as a Jehovah’s Witness.
The central question for us, on appellate review, is not merely the admeasurement of plaintiff’s damages under the application of traditional tort law standards, but the broader controversy involving plaintiffs beliefs and their proper effect upon her monetary award. That, in turn, obliges us to grapple with grave constitutional issues ordinarily not involved in a motor vehicle accident — even one as tragic and catastrophic1 as this one.
I.
For a hundred years it has been settled law in this State that a party who claims to have suffered damage by the tort of another is bound "to use reasonable and proper efforts to make the damage as small as practicable” (Blate v Third Ave. R. R. Co., 44 App Div 163, 167), and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon him (Hamilton v McPherson, 28 NY 72, 77).
Plaintiff Robbins suffered a severely damaged left hip, as well as a painful injury to her right knee. Her own expert testified that if these injuries were not alleviated by well-recognized and universally accepted surgical procedures, her prognosis was for a wheelchair-bound life because of the inevitability of necrotic development in the bone structure of these limbs. Moreover, all the experts agreed that the surgical intervention available to this plaintiff (52 years of age at the time of the accident) offered her the prospect of a good recovery and a near normal life. However, Robbins, a devout Jehovah’s Witness, [551]*551presented proof (chiefly from her own hospital records) that she was obliged to refuse these recommended surgeries because her church prohibits the blood transfusions they would necessarily entail.
In accordance with settled law, the New York pattern jury instruction on the subject of damage mitigation refers to the actions of "a reasonably prudent person” (PJI 2:325) and measures the duty to mitigate in accordance with that standard.2 Although the trial court acquainted the jury with the existence of that standard, it charged that in this case the standard to be applied was something very different:
"You have to accept as a given that the dictates of her religion forbid blood transfusions.
"And so you have to determine * * * whether she * * * acted reasonably as a Jehovah’s Witness in refusing surgery which would involve blood transfusions.
"Was it reasonable for her, not what you would do or your friends or family, was it reasonable for her given her beliefs, without questioning the validity or the propriety of her beliefs?” (Emphasis added.)
In abandoning the "reasonably prudent person” test in favor of a "reasonable Jehovah’s Witness” standard, over defendants’ objection, the trial court perceived the issue as involving this plaintiff’s fundamental right to the free exercise of her religion, protected by the First Amendment of the United States Constitution and article I (§ 3) of the New York State Constitution (167 Mise 2d 312). The First Amendment prohibits any law "respecting an establishment of religion, or prohibiting the free exercise thereof’. Essentially, the court held that if the jury were permitted to assess this plaintiff’s refusal to accept additional surgery without total deference to her religious beliefs, it would unlawfully restrain "the free exercise” of her Jehovah’s Witness faith and would thus be constitutionally prohibited. In effect, this plaintiff’s religious beliefs were held, as a matter of law, to relieve her of any legal obligation to mitigate damages under the same standard required of all other [552]*552persons similarly situated who do not share similar religious convictions.
Prior to this action, New York courts have rarely dealt with the issue of a plaintiff whose medical care was limited by her religious beliefs. Virtually all of the handful of jurisdictions to have considered the question have adopted the test of the reasonably prudent person instead of the formulation employed here. (See, e.g., Munn v Algee, 924 F2d 568 [5th Cir], cert denied 502 US 900; Corlett v Caserta, 204 Ill App 3d 403, 413-414, 562 NE2d 257, 263; Shorter v Drury, 103 Wash 2d 645, 659, 695 P2d 116, 124, cert denied 474 US 827; see also, Nashert & Sons v McCann, 460 P2d 941 [Okla].)
In our view, the analysis of the trial court contained many flaws. The first error was in defining the fundamental issue as whether any jury verdict could be permitted to conflict with this plaintiff’s "religious belief that it may be better to suffer present pain than to be barred from entering the Kingdom of Heaven” (167 Misc 2d, supra, at 318).3 With all due deference, this is not the question that should have been presented; to put it in this manner inevitably skews the result.4
No one suggests that the State, or, for that matter, anyone else, has the right to interfere with that religious belief. But the real issue here is whether the consequences of that belief must be fully paid for here on earth by someone other than the injured believer. According to the trial court, the State has little interest in enforcing its general rule of damage mitigation simply to rescue a wrongdoer from the full consequences of his tortious conduct. This simplistic formulation has little application to the realities of this case. Here, the "wrongdoer,” who fell asleep at the wheel, paid for his "fault” with his life. The respondents in damages (defendant car leasing company and its insurance carrier) must answer for the harm under the derivative liability imposed by Vehicle and Traffic Law § 388, which expresses the State’s interest in cost allocation among
[553]*553that segment of the public that pays automobile insurance premiums.
Of course, the State does not have any interest in the question of who wins this lawsuit, or the extent to which one party prevails over the other. But the State does have a compelling interest in assuring that the proceedings before its civil tribunals are fair, and that any litigant is not improperly advantaged or disadvantaged by adherence to a particular set of religious principles. The State also has a compelling interest, by constitutional command under the Fourteenth Amendment, to extend equal protection of the law to every person haled before its courts. A derivative tortfeasor is certainly entitled to no less equal protection, in this regard, than an individual under criminal indictment.
Under the Religious Freedom Restoration Act of 1993 (42 USC § 2000bb-l), a State’s effort to impose a substantial burden upon an individual’s free exercise of religion may only be justified in the presence of a compelling governmental interest. For example, a State’s interest in establishing eligibility rules for unemployment compensation cannot justify forcing a Sabbatarian applicant to accept work on her day of rest (Sherbert v Verner, 374 US 398), or requiring Amish children to attend public school in contravention of their religious tenets and practice (Wisconsin v Yoder, 406 US 205).
An order emanating from a State court constitutes "state action” which, under the Fourteenth Amendment, would trigger First Amendment protections (Cohen v Cowles Media Co., 501 US 663, 668). The trial court’s instruction to the jurors on mitigation directed them to pass upon the reasonableness of plaintiff Robbins’ objection, on religious grounds, to a blood transfusion. The fallacy in this instruction was that the jury never received any evidence pertaining to the rationale of her religious convictions, nor how universally accepted they may have been by members of her faith. True, there were entries in her medical records that she refused blood transfusions because she was a Jehovah’s Witness, and there was brief testimony (in the context of presenting her diminished physical capabilities) that she attended Jehovah’s Witness prayer services. But there was no evidence of the basis for the religious prohibition of blood transfusions. The charge thus created a sham inquiry; instead of framing an issue on how plaintiff Robbins’ religious beliefs impacted on mitigation, the court foreclosed the issue in her favor without any supporting evidence. Let us recall, the jurors were told that they must ask themselves whether [554]*554this plaintiffs refusal to accept a blood transfusion was reasonable, "given her beliefs, without questioning the validity” of those beliefs (emphasis added). Having thus removed from the jury’s consideration any question as to the validity (that is to say, the reasonableness) of plaintiff Robbins’ religious convictions, the court effectively directed a verdict on the issue.
Of course, the alternative — the receipt of "expert” testimony on this subject — presents an even worse prospect. Such evidence, if any conflict developed, would present a triable issue as to whether the conviction against transfusions was heretical — or orthodox5 — within the Jehovah’s Witness faith.
The State may not endorse religion or any particular religious practice (Lamb’s Chapel v Center Moriches Union Free School Dist., 508 US 384). The trial court, in accepting the sincerity of plaintiff Robbins’ beliefs as a given and asking the jury to consider the reasonableness of her actions only in the context of her own religion, effectively provided government endorsement to those beliefs. American courts have no business endorsing or condemning the truth or falsity of anyone’s religious beliefs. The admonition delivered by Justice Douglas more than a half century ago, in United States v Ballard (322 US 78, 86-87), bears repeating: "Freedom of thought, which includes freedom of religious belief * * * embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. * * * [I]f those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain”.6
[555]*555Even under the three-pronged formula of Lemon v Kurtzman (403 US 602, 612-613),7 this State action by the trial court impermissibly entered the "forbidden domain.” Under that test, a challenged governmental action, in order to pass constitutional muster, must have a secular purpose, its principal or primary purpose may not advance or inhibit religion, and it may not foster excessive entanglement with religion. No secular court can decide — or, for that matter, lead a jury to decide — what is the reasonable practice of a particular religion without setting itself up as an ecclesiastical authority, and thus entangling it excessively in religious matters, in clear violation of the First Amendment. In Kirk v Cisler (244 App Div 733), which also involved personal injuries stemming from an automobile accident, the Second Department cautioned against permitting the tenets of a particular religion to "creep into the trial” in a manner which might invite a personal issue between a party and the jury.
An extraordinary example of the perils of such an excursion is the recent Minnesota case of Lundman v McKown (530 NW2d 807, 828, cert denied — US —, 116 S Ct 828), where damages were awarded against a Christian Scientist stepfather who blocked conventional treatment that, to a medical certainty, would have saved a young child’s life.8 Here was a healthy 11-year-old boy who succumbed to a sudden onset of juvenile diabetes, a disease that is easily diagnosable and treatable by conventional medical practice. Instead, his mother and stepfather enlisted the services of Christian Science practitioners who provided only "spiritual treatment.” The child’s condition deteriorated rapidly, and he died three days later. There was evidence that a shot of insulin administered as late as two hours before death could have saved him. A wrongful death action was commenced by the child’s natural father and older sister against the mother and stepfather, the various [556]*556spiritual practitioners and the Christian Science Church itself. A jury awarded compensatory damages against all defendants in the amount of $5.2 million (reduced on posttrial motion to $1.5 million), and $9 million in punitive damages against the church.
The Minnesota Court of Appeals overturned _ the verdict against the church and its officials, but upheld the portion of the award against the mother, stepfather and local practitioners. In reaching that conclusion, the appellate court allowed itself to become deeply entangled in ecclesiastical matters regarding the tenets of the Christian Science faith. The trial court, in awarding damages against the mother and stepfather, had applied the reasonable person standard of care. The Court of Appeals ruled, to the contrary, that the proper standard was that of the "reasonable Christian Scientist”, but then went on to hold, as a matter of law, that a new trial was not warranted because the reasonable Christian Scientist would necessarily have concluded (as did the jury under the reasonable person standard) that the life-or-death interest of the child should have prevailed and dictated conventional medical treatment (530 NW2d, supra, at 828). In other words, the appellate court undertook to evaluate the reasonableness of various practices and tenets of the Christian Science faith; by doing so as a matter of law, it proceeded deep into the very "forbidden domain” about which Justice Douglas cautioned (322 US, supra, at 87). We should firmly decline to follow that rarely trodden and perilous path.
II.
In espousing the objective standard and remanding this matter for a new trial, we take note of an obvious problem with strict adherence to the pattern jury instruction that is provided as a general guide (see, n 2, supra). We conclude that the unmodified application of that formulation would work an injustice in this case, as well as in others of a similar nature. It seems apparent to us that a person in plaintiff Robbins’ position must be permitted to present to the jury the basis for her refusal of medical treatment; otherwise, the jury would simply be left with the fact of her refusal, without any explanation at all. Once such evidence is (as it should be) received, the court is called upon to instruct the jurors as to how such evidence should affect their deliberations. Addressing this issue, we hold that the pattern jury instruction must be supplemented here with the following direction: "In considering whether the [557]*557plaintiff acted as a reasonably prudent person, you may consider the plaintiff’s testimony that she is a believer in the Jehovah’s Witness faith, and that as an adherent of that faith, she cannot accept any medical treatment which requires a blood transfusion. I charge you that such belief is a factor for you to consider, together with all the other evidence you have heard, in determining whether the plaintiff acted reasonably in caring for her injuries, keeping in mind, however, that the overriding test is whether the plaintiff acted as a reasonably prudent person, under all the circumstances confronting her.”
The so-called "reasonable believer” charge (Pomeroy, Reason, Religion, and Avoidable Consequences: When Faith and the Duty to Mitigate Collide, 67 NYU L Rev 1111, 1145-1147 [1992]) has found some support in other jurisdictions (Lange v Hoyt, 114 Conn 590, 159 A 575; Christiansen v Hollings, 44 Cal App 2d 332, 112 P2d 723). Our modification of the PJI charge is intended to strike a fair balance between the competing interests of these parties. And in pursuit of that goal, we reiterate that the court is not to permit the introduction of any "theological” proof, by way of either expert or lay testimony, as to the validity of religious doctrine, nor should the court issue any instructions whatsoever on that score.
III.
If this matter is to be retried, two other points are worth noting. CPLR 5041 (e) states that "an annuity contract * * * will provide for the payment of the remaining amounts of future damages in periodic installments.” Because of the considerable delay between the judgment we are now vacating and any future judgment recovered, the trial court should be left with some discretion to make an immediate lump-sum award, to be deducted from any annuity awarded. The trial court did not err in this respect.
We also hold that the missing witness charge sought by defendants was properly denied by the trial court. The physician’s testimony would have been cumulative, inasmuch as all of his records had already been placed in evidence (Diario v Scala, 183 AD2d 1065, 1067; Kane v Linsky, 156 AD2d 333).
In view of the foregoing disposition, we find it unnecessary to reach the other contentions of the parties.
Accordingly, the judgment of Supreme Court, New York County (Edward Greenfield, J.), entered November 13, 1995, which, after a jury verdict, awarded plaintiff Robbins damages [558]*558for her personal injuries structured in accordance with CPLR article 50-B, should be reversed, on the law and the facts, without costs, and the matter remanded for new trial on damages alone.